DUI Trial Tip: The Polygraph is Bullshit!

One of my favorite shows EVER is Penn & Teller’s Bullshit on Showtime.  In a recent show, they came to the conclusion that the polygraph is…bullshit.  Here is a previous post dealing with just that issue.

In 1983 Congress’ Office of Technology Assessment evaluated all available studies on the reliability of polygraphs and concluded that ” ‘[o]verall, the cumulative research evidence suggests that when used in criminal investigations, the polygraph test detects deception better than chance, but with error rates that could be considered significant.’ ” (quoting U. S. Congress, Office of Technology Assessment, Scientific Validity of Polygraph Testing: A Research Review and Evaluation-A Technical Memorandum 5 (OTA-TM-H-15, Nov. 1983)).

Until quite recently, federal and state courts were uniform in categorically ruling polygraph evidence inadmissible under the test set forth in Frye v. United States , 293 F. 1013 (CADC 1923), which held that scientific evidence must gain the general acceptance of the relevant expert community to be admissible. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that Frye had been superseded by the Federal Rules of Evidence and that expert testimony could be admitted if the district court deemed it both relevant and reliable. Prior to Daubert , neither federal nor state courts found any Sixth Amendment obstacle to the categorical rule. See , e.g., Bashor v . Risley , 730 F. 2d 1228, 1238 (CA9), cert. denied, 469 U.S. 838 (1984); People v . Price , 1 Cal. 4th 324, 419-420, 821 P. 2d 610, 663 (1991), cert. denied, 50 S. 851 (1992). Nothing in Daubert foreclosed, as a constitutional matter, per se exclusionary rules for certain types of expert or scientific evidence. It would be an odd inversion of our hierarchy of laws if altering or interpreting a rule of evidence worked a corresponding change in the meaning of the Constitution.